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By Jaileen F. Jimeno, Philippine Center For
Investigative Journalism
First of two parts
SANTA CRUZ, Zambales: Nickel is not doing too
well in the world market these days, but residents here do not seem
to mind, even though nickel has become one of this town’s major
revenue earners.
That’s because whenever nickel commands top
dollar, red dust smothers the town’s main highway and the pier,
and red mud cakes the roads. Residents also have to share their
small barangay roads with huge, lumbering trucks, and when rains
come, floodwaters the color of blood fill their rice fields.
Meanwhile, up in the mountains, armed guards hired by mining firms
menace real and imagined foes and sometimes engage each other in
deadly shootouts.
No wonder Gov. Amor Deloso of Zambales has taken
to describing Santa Cruz—some 170 kilometers north of Manila—as
“parang Iraq [like Iraq].”
Deloso seems to confine such a description to
what he and others say is the increased militarization in this town
because of mining. But he may well also be describing the
helter-skelter way mining is being conducted in the entire province,
recalling the mayhem and lawlessness in Iraq. Ironically, according
to local officials and ordinary Zambaleńos, the situation can be
traced largely to no less than Deloso’s mining policies.
The governor himself said that Zambales has
become a “battleground between big and small interests, national
against local officials, with some intramurals between me and the
mayor [of Santa Cruz].” Yet he was unapologetic about the policies
on mining he has crafted, even though lawyers and some local
officials said the legality of these are, at the very least,
suspect, especially those pertaining to small-scale mining.
These are also why unearthing Zambales’
minerals (which include chromite and gold and are estimated to be
worth billions of dollars) has turned the province into a virtual
powder keg waiting to explode. Indeed, Secretary Joselito “Lito”
Atienza of the Department of Environment and Natural Resources (DENR)
has called Zambales “the most problematic province in terms of
mining.”
Laws bent, ignored
Zambales’ mining mayhem, however, is not only
a template of how local governments should not manage the industry.
It also reveals how national government offices, like the
Environment department, are rendered inutile as laws are bent and
manipulated to suit the needs of local officials.
Confesses a mid-level department official when
confronted with the situation in Zambales: “Our men just deal with
small problems on the ground, like conflicts between small
miners.”
This is even though it was the department that
issued the implementing rules and regulations for Republic Act 7076,
or the 1991 People’s Small-Scale Mining Law. It is also the
department that has direct supervision and control over some of the
vital bodies that govern small-scale mining, which is aimed at
helping generate income for the rural poor.
These include the Provincial Mining and
Regulatory Board (PMRB), a five-member body that is supposed to be
headed by the regional director of the Environment department’s
Mines and Geosciences Bureau. It is the department’s implementing
agency for the People’s Small-Scale Mining Program. Among other
things, it is upon its recommendation that a small-scale mining
contract is issued by the governor.
In addition, it is the department secretary who
has “direct supervision and control over the [People’s
Small-Scale Mining Program] and activities of small-scale miners”
within the designated area.
Permit or contract
An Environment department primer on small-scale
mining says either a permit or a contract can be issued. A permit is
good for two years and renewable only once. A contract is also
effective for two years, but is renewable for like periods.
Both permits and contracts emphasize artisanal
work or manual labor; the use of heavy or sophisticated equipment
like drilling machines, payloaders, and excavators is prohibited.
Also, the law limits the annual production for metallic minerals for
a small-scale mining operator at a maximum 50,000 tons of ore.
Clarificatory guidelines signed in 2007 by then
Environment Secretary Angelo Reyes say that contracts are issued to
cooperatives that will work in sites designated as small-scale
mining areas. Permits are issued to qualified individuals who have
the “capacity to contract” or a corporation or partnership
“authorized to engage in mining, registered with the Securities
and Exchange Commission, [with] at least 60 percent of the capital .
. . owned at all times by Filipino citizens.”
Permits cover sites outside of small-scale
mining areas. They are issued following the rules spelled out in
Presidential Decree 1899, a Marcos-era law that remains in force.
Reyes’ guidelines, however, make it clear that
both permit- and contract-holders are bound by the “provisions of
. . . the Philippine Mining Act of 1995, the Small-Scale Mining Laws
and their implementing rules and regulations, among others.”
Zambales, though, does not seem to believe it
needs to follow these laws. Since 2007, it has been one-month
small-scale mining permits that allow a holder to haul off 50,000
tons of ores within that period from a 5-hectare area. The permits
can be renewed twice, after which a miner only has to show proof of
active extraction to secure a longer-term permit. And contrary to
stipulations in the small-scale mining laws, these allow a holder to
use heavy equipment to extract the ore from the ground.
But Governor Deloso, who is also a lawyer, sees
no conflict with his province’s unique mining permits and national
laws.
“Nobody can stop a governor from giving a
special permit to in any line of business,” he said. “It is not
prohibited, therefore it is permitted.”
Still, he does subtly acknowledge the
prohibition against the use of heavy machinery in small-scale mining
by calling the provision “backward” and “impractical.”
It consigns small-scale miners to “kamote
mining,” he said, thundering, “How can you get 50,000 tons with
your spade and wheelbarrow? It’s like telling me that since my
father rides a horse-drawn carriage, I should not drive a car.”
Deloso pointed to Zambales’ past forays into
mining as one reason why he decided to come up with the short-term
permit for small-scale miners. He said that big miners, though
operating for generations, did not contribute much to the
capitol’s coffers, since they sent their taxes directly to the
national government. The province even had to repair roads in mining
areas that were run down by heavy trucks and machinery, he added.
Permit for P10K
This time around, Zambales issues its one-month
mining permit to anyone who can cough up P10,000 as issuance-fee
payment. Small-scale miners also have to pay the provincial
government an “enhancement fee” of P50 per metric ton of nickel
and P60 per metric ton of chromite. There is a P15,000 fee for a
Provincial Environmental Clearance Certificate (PECC) as well.
Despite these fees, hundreds of entrepreneurs
line up for the permits. One harried employee of the Environment and
Natural Resources of Zambales (ENROZ) was reduced to spewing mixed
metaphors, saying that the permits have been “selling like
hotcakes” and that applicants show up at his office “like
mushrooms after a thunderstorm.”
The employee added that before Deloso became
governor two years ago, his office received just three mining
inquiries a month. By mid-2006, it was handling as much as five new
applicants a day, besides those following up on the processing of
their permits, making his small office seem like a market on a
payday weekend.
Quips Sangguniang Panlalawigan member Samuel
Ablola, chair of the capitol’s environment and natural resources
committee and who thought of the enhancement fee: “Halos lahat na
may application. Baka iyong sementeryo na lang ang wala [Almost all
land areas have pending mining applications. Maybe only the
cemeteries are spared].”
Indications are that most of those permits are
granted. In the past, Zambales was netting an annual average of only
P3 million in regulatory and extraction fees from mining and
quarrying activities. As late as 2006, the Environment and Natural
Resources of Zambales was still reporting a total annual collection
of P3.3 million from mining and quarrying. Yet, just a year later,
that figure had shot up to P28.3 million—and that excluded monies
collected as enhancement fees.
The provincial government does not get the bulk
of the income from mining, taking only 30 percent of the revenue.
Another 30 percent goes to the host town, while the remaining 40
percent is supposed to go to the barangay, where the mining site is.
But Deloso does not seem to mind. The
capitol’s share will go to the provincial government’s general
fund, he said, adding, “I can spend it for school buildings and
repair of roads.”
The governor says Environment and Natural
Resources of Zambales will manage the fund from the enhancement-fee
payments, which helped the capitol’s yearly total mining income
rise to almost P60 million in 2008. He has already designated
Botolan, his hometown, as a beneficiary of the enhancement-fee fund,
but is vague about specific projects.
Wild about mining
Botolan, just a few minutes away by car from the
capitol, hosts nickel mining companies, among them NiHAO Mineral
Resources International Inc., which is headed by former Environment
Secretary Michael Defensor. The town was submerged recently in
floodwaters that reached rooftops, after a dam broke at the height
of Typhoon Kiko.
Yet despite the revenue windfall generated by
the capitol’s one-month mining permits, some local officials are
far from being pleased. In fact, Santa Cruz Mayor Luisito Marty
fumes when the subject of the permits comes up in an interview.
“People go wild,” he said. “All of a
sudden, there are these little mining companies in our midst.”
It’s bad enough that the capitol does not
consult the concerned municipality before issuing the permits.
According to Marty, mining firms now also bypass his office and go
directly to barangay officials for permission to operate in their
chosen area.
Since 2007, a smarting Marty has not issued a
mining permit, save for one that went to the firm A3UNA Mining
Corp., which is on the Environment department’s list of eight
companies permitted to do large-scale mining in Zambales. But miners
big and small have nevertheless invaded his town, waving papers from
the capitol or from barangay officials.
Fights have broken out over overlapping claims,
prompting several overzealous firms to hire security guards, some of
whom are described by Deloso as “vicious.” Referring to the big
mining companies, he added, “They all have private armies and
camps.”
In January 2008, then Region III Director
Anselmo Abungan of the Department of Environment and Natural
Resources wrote to Deloso, asking him to refrain from issuing
permits already covered by prior mining permits.
Abungan also asked the capitol to secure an area
clearance from the department before granting a permit. The request
stemmed from a complaint by three major mining firms against A3UNA
for alleged illegal mining and quarrying. A3UNA turned out to be
holding a permit granted by the capitol to small miners.
But Deloso says the problem could have been
avoided had the big mining companies approached him before they
began operating. “They were boasting that they were protected by
the national government, [and] that’s why there was trouble.”
It’s a statement that may not go unchallenged.
Even ordinary folk have been grumbling over the capitol’s
one-month mining permits, which are issued so frequently and
speedily that the provincial government has been hard-pressed in
keeping up-to-date records.
With a combined staff of just 20 people, the
Environment and Natural Resources of Zambales and the Provincial
Mining Regulatory Board have also found it difficult to double check
an applicant’s claim of having satisfied the requirements and if a
permit-holder is following mining rules and regulations.
Theoretically, the board provides the check and
balance to the capitol’s power to issue mining permits and
contracts. It is also through this body that the Environment
department keeps tabs on small-scale mining in the area. Yet
especially after current Region III Director Danilo Uykieng of the
department assigned an underling to attend meetings, the crucial
decision-making has been left to the rest of the board members—who
are all Deloso appointees.
Rubber-stamp board?
A Provincial Mining and Regulatory Board member
who declines to be named for fear of antagonizing the capitol
confirms that all one-month permits go through the board. But the
member says that there is a tendency to gloss over the failure of
small miners to submit complete requirements.
The member said that instead, the board has
tried to focus on ensuring that mining claims do not overlap. Yet
the board performs dismally even in that, says the member, because
any effort to validate a claim is thwarted by a swift move for a
vote.
This has made the board function like a rubber
stamp. When the motion is carried, documents granting the permit are
readied for Deloso’s approval. According to the board member, the
governor signs the papers without knowing how the debates went.
Another board insider said this had exasperated
Uykieng, who was said to be even more upset when the board approved
small-scale mining permits for areas where there were already
large-scale operations. Uykieng, who is supposed to head the board,
reportedly said, “What am I here for, if you don’t respect the
large-scale permits?”
The insider said Uykieng, who was appointed as the department’s
Region III director in May 2008, sat in only two board meetings
before he began sending an underling to take his place.
Board secretariat head Wilson Biag admitted some
small-scale mining permits encroach into large-scale mining areas.
But he said the small-scale miners were there first.
He also defended the 30-day small-scale mining
permits by noting that the industry’s big players already control
90 percent of Zambales’ mineral-rich areas. Small-scale miners
begin their trade at a disadvantage, Biag argued, so they need all
the help they could get.
The boost from the capitol includes allowing
those armed only with exploration permits to extract up to 20 metric
tons of minerals even in areas that are already legally spoken for.
Biag said, “We want to give them [small-scale miners] time to
check if there are minerals, before they invest more money into the
project.”
The irony is that the month-long permits have
become the alternate source of ores for big firms that want to speed
up mineral collection.
Biag said the capitol is aware of the practice.
“We are trying to resolve this because the permits are
non-transferable. They come to some sort of an agreement that the
small-scale miner is just the claimant, and the big mining firms are
the operator.”
For a fixed fee, a small-scale mining permit
holder may also totally surrender its site to a major mining
company.
No legal basis
Biag said the capitol was drawing up new
guidelines to make Zambales’ small-scale mining practices dovetail
with the national government’s policies. But to Leo Jasareno,
chief of the Mines and Geosciences Bureau’s Mining Tenements
Management Division, the issue is simple: “These permits are not
part of the mining laws. Anything that is not in the mining law has
no legal basis. That’s common sense.”
He said that the Environment department has been working on an order
that would guide governors and local government units (LGUs) in
implementing the Small-Scale Mining Act. Jasareno added that efforts
to draft the guidelines had been hampered by a controversy over the
department’s January 5, 2009 order for all extractions to be
covered by a Mineral Ore Export Permit (MOEP) before being
shipped out.
The permit is an Environment department
initiative to curb ore smuggling. Jasareno said that compliance with
the permit order has been almost 100 percent. The sole exception is
Deloso, who even asked the Court of Appeals in January to have the
order rescinded, arguing that it was “an administrative issuance
which is not sanctioned by R.A. 7942.”
Jasareno said that once the mining guide for
local governments is finalized, it would address the issues in
Zambales. But legal experts like environment and human rights lawyer
Antonio La Vina said that all the Environment department has to do
is to “assert its power.”
“All of the environmental powers of the LGUs
are also under the control and review of the DENR,” said La Vina,
who is dean of the Ateneo de Manila University’s School of
Government. He added that the department could put a stop to what is
happening in Zambales “by issuing a cease-and-desist order.”
“That’s the proper remedy,” he said.
La Vina also echoes other legal experts in
saying that while the Local Government Code gives provincial and
municipal officials latitude in developing their own rules, these
should never contradict national laws.
To Governor Deloso, however, the issue is more
about justice than the law. “I do not understand,” he said,
“why the big firms will get all the benefits from mining, and
Zambales gets nothing.”
He added that his policies are easing poverty in
Zambales. After all, Deloso said, very few residents from mining
towns like Santa Cruz now line up in front of his office to ask for
money.
To be continued
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